exhibit10_1.htm


    Exhibit
10.1


      MUTUAL
TERMINATION AND RELEASE AGREEMENT

       

          This Mutual
Termination and Release Agreement, dated as of August 8, 2008 (this “Release
Agreement”), is by and among ALLIS-CHALMERS ENERGY INC., a Delaware corporation
(“Parent”), ELWAY MERGER SUB LLC, a Delaware limited liability company (formerly
known as Elway Merger Sub, Inc.) and a direct, wholly owned subsidiary of Parent
(“Merger Sub”), and BRONCO DRILLING COMPANY, INC., a Delaware corporation (the
“Company”).

       

      Recitals

       

          WHEREAS,
Parent, Merger Sub and the Company (each, a “Party,” and collectively, the
“Parties”) entered into an Agreement and Plan of Merger dated as of January 23,
2008, as amended by the First Amendment to the Agreement and Plan of Merger
dated as of June 1, 2008 (the “Merger Agreement”), providing for the merger of
the Company with and into Merger Sub, with Merger Sub surviving (the
“Merger”);

       

          WHEREAS, each
Party has determined that (i) it is unlikely that the Merger Agreement will be
adopted by the requisite vote of stockholders of the Company and (ii) that it is
advisable and in the best interests of each Party to terminate the Merger
Agreement and provide for the compromise and settlement of any and all potential
claims among the Parties thereunder;

       

          NOW,
THEREFORE, for and in consideration of the recitals and the mutual covenants and
agreements set forth in this Release Agreement, the Parties agree as
follows:

       

      Article
1

       

      Definitions

       

          Section
1.1 Defined
Terms.  As used in this Release Agreement, capitalized terms
shall have the meanings set forth below or shall have the meanings set forth for
such terms in the sections of this Release Agreement referenced
below:

       

          “Affiliate”
means, with respect to any Person, each other Person that directly or indirectly
Controls, is Controlled by, or is under common Control with such
Person.

       

          “Claim” means
any and all manner of claims, rights, actions, losses, judgments, damages,
causes of action, suits, liens, obligations, accounts, debts, demands,
agreements, promises, liabilities, controversies, costs, expenses and fees
(including attorney’s, financial advisor’s, lender’s or other fees) whatsoever,
whether arising in law or equity, whether based on any federal, state or foreign
law or right of action, mature or unmature, contingent or fixed, liquidated or
unliquidated, known or unknown, suspected or unsuspected, accrued or unaccrued,
that now exist, may exist or heretofore have existed.

       

          “Company” has
the meaning given to such term in the preamble.

       

          “Confidentiality
Agreement” means the Amended and Restated Confidentiality Agreement, dated as of
December 24, 2007, between the Company and Parent.

       

          “Control”
(and related terms) means the possession, directly or indirectly, of the power
to direct or cause the direction of the management policies of a Person, whether
through the ownership of stock, by contract, credit arrangement or
otherwise.

       

          “Effective
Date” has the meaning given to such term in Section 2.4.

       

          “Merger” has
the meaning given to such term in the Recitals.

       

          “Merger Sub”
has the meaning given to such term in the preamble.

       

          “Parent” has
the meaning given to such term in the preamble.

       

          “Parties” has
the meaning given to such term in the Recitals.

       

          “Party” has
the meaning given to such term in the Recitals.

       

          “Person”
means any natural person, corporation, company, limited or general partnership,
joint stock company, joint venture, association, limited liability company,
trust, bank, trust company, land trust, business trust or other entity or
organization, regardless of whether a Governmental Authority.

       

          “Release
Agreement” has the meaning given to such term in the preamble.

       

          “Release
Payment” has the meaning given to such term in Section 2.1.

       

          “Released
Parties” has the meaning given to such term in Section 2.2(b).

       

          “Releasing
Parties” has the meaning given to such term in Section 2.2(b).

       

          “Subject
Matter” means any arrangement, contract, interest, right, matter, obligation,
Claim or thing whatsoever from the beginning of the world to the Effective Date
in connection with, arising as a result of or in any way relating, directly or
indirectly, to the Merger Agreement and any other documents or transactions
contemplated thereby or referred to therein (including without limitation the
Merger) or any action taken, omitted to be taken, or attempted to be taken in
connection therewith; provided, however, that
“Subject Matter” shall not include the obligations of any Person arising solely
under the Confidentiality Agreement.

       

          Section
1.2 References, Construction and
Titles.

       

          (a) All
references in this Release Agreement to Exhibits, Schedules, Articles, Sections,
subsections and other subdivisions refer to the corresponding Exhibits,
Schedules, Articles, Sections, subsections and other subdivisions of or to this
Release Agreement, unless expressly provided otherwise.  Titles
appearing at the beginning of any Articles, Sections, subsections or other
subdivisions of this Release Agreement are for convenience only, do not
constitute any part of this Release Agreement, and shall be disregarded in
construing the language hereof.  The words “this Release Agreement,”
“herein,” “hereby,” “hereunder” and “hereof,” and words of similar import, refer
to this Release Agreement as a whole and not to any particular Article, Section,
subsection or subdivision unless expressly so limited.  The words
“this Article” and “this Section,” and words of similar import, refer only to
the Article or Section hereof in which such words occur.

       

          (b) The word
“or” is not exclusive, and the word “including” (in its various forms) means
including without limitation.  Pronouns in masculine, feminine or
neuter genders shall be construed to state and include any other gender, and
words, terms and titles (including terms defined herein) in the singular form
shall be construed to include the plural and vice versa, unless the context
otherwise requires.

       

      
        
          
          

        

        
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      Article
2

       

      Mutual
Release and Indemnification

          Section
2.1 Release
Payment.  Promptly after (and in any event on or before the
first business day following) the execution and delivery of this Release
Agreement, the Company shall pay to Parent an amount of cash equal to FOUR
MILLION FIVE HUNDRED THOUSAND DOLLARS (US $4,500,000.00) in the legal and lawful
currency of the United States of America (the “Release Payment”) by wire
transfer of immediately available funds in accordance with the wire transfer
instructions provided by Parent to the Company.

       

          Section
2.2 Termination and Mutual
Release.

       

          (a) As of the
Effective Date, the Merger Agreement and all agreements contemplated thereby
(with the sole exception of the Confidentiality Agreement) shall be terminated,
without any other action being required on the part of any Party, including
without limitation, provisions of the Merger Agreement that by their terms would
otherwise have survived the termination of the Merger Agreement.  Upon
such termination, the Merger Agreement shall be null and the provisions thereof
shall be void and shall have no force and effect whatsoever, and no Party shall
have any rights or obligations thereunder.

       

          (b) Each of
the Parties, on behalf of itself and its present, future and former officers,
directors, employees, managers, advisors, stockholders, members, managers,
agents, representatives, trust beneficiaries, heirs, attorneys, parents,
subsidiaries, Affiliates and financing sources and all of their respective
predecessors, successors, assigns, heirs, executors and administrators
(collectively, the “Releasing Parties”), does hereby release, acquit and forever
discharge and covenant not to sue each of the other Parties, and any of their
respective present, future and former officers, directors, employees, agents,
managers, advisors, representatives, stockholders, trust beneficiaries, members,
attorneys, parents, subsidiaries, Affiliates and financing sources and their
respective predecessors, successors, assigns, heirs, executors and
administrators (collectively, the “Released Parties”), from and with respect to
the Subject Matter; provided,
however, that nothing herein shall be deemed to release any Party or any
other Person from obligations under the Confidentiality Agreement, and such
Confidentiality Agreement shall remain in full force and effect after the date
hereof; provided,
further, that no Party shall be released from any breach,
non-performance, action or failure to act under this Release
Agreement.

       

          (c) The
Release Payment provided for in Section 2.1 above shall constitute the entire,
maximum and only financial obligation of the Company, all of its direct and
indirect subsidiaries, and divisions, and each of their respective affiliates,
predecessors, successors, agents, representatives, officers, directors,
employees, volunteers (including, but not limited to, board and supervisory
committee members), stockholders, insurers, heirs, assigns, benefit plans, plan
trustee and plan administrators, past and present, and their attorneys, and all
persons acting by, through, under or in concert with them or any of them, to the
other Releasing Parties (in their capacities as such) under this Release
Agreement; provided,
however, that for the avoidance of doubt, the Parties acknowledge and
agree that the provisions of this paragraph shall not in any way limit the
obligations of any Party under Section 2.2.(d) or Section 2.3.

       

          (d) Each
Party represents and warrants that (i) there has not been and there will be no
assignment, subrogation or other transfer by or on behalf of such Party of any
interest in any Claim released hereby and shall indemnify and hold each Released
Party harmless of and from any such assignment, subrogation or transfer, and
(ii) there are no outstanding civil or criminal charges, complaints, claims,
grievances, or actions of any nature whatsoever previously filed or brought by
such Party or on such Party’s behalf against the Released Parties pending before
any federal, state, local, international or administrative court or agency as of
the date of signing this Release Agreement.

       

          (e) Each
Party acknowledges, represents and warrants that it has had adequate disclosure
of all facts necessary to make a knowing release of all Claims released hereby
and further represents and warrants that it has executed this Release Agreement
knowingly and without duress.  The Parties have participated jointly
in negotiating and drafting this Release Agreement.  In the event an
ambiguity or a question of intent or interpretation arises, this Release
Agreement shall be construed as if drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any provision(s) of this Release
Agreement.

       

          (f) Each
Party acknowledges and agrees that all disputes between it and any Released
Party with respect to the Subject Matter have been fully and finally settled to
such Party’s complete satisfaction, leaving no disputes, controversies, claims
or grievances of any kind of such Party with any Released Party; therefore, each
Party covenants and agrees that it will not raise, participate in, assist, or in
any way pursue any Claims that are being released and discharged in this Release
Agreement in any forum of any kind, including, without limitation, the federal,
state or local courts, or federal, state or local agencies or offices of any
kind, be they administrative, regulatory, judicial, quasi-judicial, or
otherwise.

       

          (g) Except as
required by applicable law or the rules and regulations of any governmental
authority or by the order of any court of competent jurisdiction, each Party
agrees that such Party shall not, directly or indirectly, make, publish, or
cause to be made or published any statement or remark concerning the Subject
Matter, the participation or involvement of the Parties in the transactions
contemplated by the Merger Agreement, or the reasons or events or circumstances
surrounding the termination of the Merger Agreement that could reasonably be
understood as disparaging the business or conduct of the other Parties or as
intended to harm the business or reputation of the other Parties.

       

          Section
2.3 Indemnification.  Each
of the undersigned Parties shall protect, indemnify and hold harmless each of
the other Released Parties from and against any and all Claims and related
expenses (including without limitation reasonable attorneys’ fees and
disbursements), that both (i) are incurred by such Released Party in any action
or proceeding between any of the Releasing Parties and such Released Party that
relates or shall relate to any of the Subject Matter and (ii) arise as a result
of or in any way relating, directly or indirectly, to any action or inaction
taken or caused to be taken by any of the Releasing Parties.  The
indemnification obligations set forth herein shall not apply to any Claims or
related expenses incurred by any Released Party as a result of any Claims
between such Released Party and any Person other than a Releasing
Party.

       

          Section
2.4 Effective
Date.  This Release Agreement and the agreements, releases,
settlements and waivers set forth herein shall be effective as of the date (the
“Effective Date”) when the Release Payment is received by Parent.

       

      Article
3

       

      Miscellaneous

       

          Section
3.1 Counterparts.  This
Release Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective when
one or more counterparts have been signed by each of the Parties and delivered
to the other Parties whether such delivery is by physical delivery or by means
of a facsimile, electronic mail or portable document format (PDF) transmission,
it being understood that all Parties need not sign the same
counterpart.

       

          Section
3.2 Severability.  The
provisions of this Release Agreement will be severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions hereof so long as the economic and legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any Party.  Subject to the preceding sentence, any term or
provision of this Release Agreement that is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be deemed modified to the minimum
extent necessary to make such term or provision valid and enforceable, provided that if such term or
provision is incapable of being so modified, then such term or provision shall
be deemed ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and provisions of
this Release Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Release Agreement in any other
jurisdiction.  If any provision of this Release Agreement is so broad
as to be unenforceable, such provision shall be interpreted to be only so broad
as is enforceable.

       

          Section
3.3 Entire Agreement; No Third
Party Beneficiaries.  This Release Agreement (together with the
Confidentiality Agreement and the documents and instruments delivered by the
Parties in connection with this Release Agreement):  (a) constitutes
the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matter hereof; (b) except as provided in Section 2.2 and Section 2.3
(each of which is intended to be for the benefit of the Persons covered
thereby), is solely for the benefit of the Parties and their respective
successors, legal representatives and assigns and does not confer on any Person
other than the Parties any rights or remedies hereunder, and (c) may not be
amended, except by an instrument in writing signed by the Parties.

       

          Section
3.4 Applicable
Law.  This Release Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (including the laws of Delaware with respect to statutes of limitation
and statutes of repose).

       

          Section
3.5 Confidentiality
Agreement.  The Confidentiality Agreement shall remain in full
force and effect following the execution of this Release Agreement, is hereby
incorporated herein by reference, and shall constitute a part of this Release
Agreement for all purposes.  Any and all information received by
Parent and the Company pursuant to the terms and provisions of this Release
Agreement shall be governed by the applicable terms and provisions of the
Confidentiality Agreement.

      
        
          
          

        

        
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            Section
3.6 Specific Performance;
Remedies.  Each Party acknowledges and agrees that the other
Parties would be damaged irreparably if any provision of this Release Agreement
were not performed in accordance with its specific terms or were otherwise
breached.  Accordingly, the Parties will be entitled to an injunction
or injunctions to prevent breaches of the provisions of this Release Agreement
and to enforce specifically this Release Agreement and its provisions in any
action or proceeding instituted in any state or federal court having
jurisdiction over the parties and the matter, in addition to any other remedy to
which they may be entitled, at law or in equity.  Except as expressly
provided herein, the rights, obligations and remedies created by this Release
Agreement are cumulative and in addition to any other rights, obligations or
remedies otherwise available at law or in equity.  Except as expressly
provided herein, nothing herein will be considered an election of
remedies.

      

       

          Section
3.7 Waiver of Jury
Trial.  Each of the Parties hereto hereby waives to the fullest
extent permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Release Agreement or the transactions contemplated by this
Release Agreement.  Each of the Parties hereto (a) certifies that no
representative, agent or attorney of any other Party has represented, expressly
or otherwise, that such other Party would not, in the event of litigation, seek
to enforce that foregoing waiver and (b) acknowledges that it and the other
hereto have been induced to enter into this Release Agreement and the
transactions contemplated by this Release Agreement, as applicable, by, among
other things, the mutual waivers and certifications in this Section
3.7.

       

      (Signature Page
Follows)

       


      
        
           


        

        
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      IN
WITNESS WHEREOF, the Parties have caused this Release Agreement to be executed
by their duly authorized representatives, on the date first written
above.

       

      Company:

       

      BRONCO
DRILLING COMPANY, INC., a Delaware corporation

       

      By: /s/ D. FRANK HARRISON

       

      Name:D.
Frank Harrison

       

      Title:Chairman
and Chief Executive Officer

       

      Parent:

       

      ALLIS-CHALMERS
ENERGY INC., a Delaware corporation

       

      By: /s/ VICTOR M. PEREZ

       

      Name:
Victor M. Perez    

       

      Title:
Chief Financial Officer

       

      Merger
Sub:

       

      ELWAY
MERGER SUB LLC, a Delaware limited liability company

       

      By:
/s/ VICTOR M. PEREZ

       

      Name:
Victor M. Perez    

       

      Title:
Chief Financial Officer

       


      
        
           


        

        
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